{"id":24502,"date":"2000-10-17T00:00:00","date_gmt":"2000-10-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sri-jagatram-ahuja-vs-the-commissioner-of-gift-tax-on-17-october-2000"},"modified":"2016-03-19T20:15:47","modified_gmt":"2016-03-19T14:45:47","slug":"sri-jagatram-ahuja-vs-the-commissioner-of-gift-tax-on-17-october-2000","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sri-jagatram-ahuja-vs-the-commissioner-of-gift-tax-on-17-october-2000","title":{"rendered":"Sri Jagatram Ahuja vs The Commissioner Of Gift Tax on 17 October, 2000"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sri Jagatram Ahuja vs The Commissioner Of Gift Tax on 17 October, 2000<\/div>\n
Author: S V Patil<\/div>\n
Bench: S.P. Bhuracha, S.N. Phukan, Shivaraj V. Patil<\/div>\n
           PETITIONER:\nSRI JAGATRAM AHUJA\n\n\tVs.\n\nRESPONDENT:\nTHE COMMISSIONER OF GIFT TAX,\n\nDATE OF JUDGMENT:\t17\/08\/2000\n\nBENCH:\nS.P. Bhuracha , S.N. Phukan , & Shivaraj V. Patil\n\n\n\n\nJUDGMENT:\n<\/pre>\n
Shivaraj V.  Patil J.\n<\/p>\n
L…I…T…….T…….T…….T…….T…….T…….T..J<\/p>\n
    This  appeal is by the assessee against the judgment and
\norder  dated  25.4.1988 passed by the Division Bench of\t the
\nHigh  Court of Andhra Pradesh.\tIt relates to the assessment
\nyear 1972- 73.\n<\/p>\n
    The\t Income-tax Appellate Tribunal, Hyderabad (for short
\nthe  `Tribunal’ ) had referred the following question  under
\n26(1)  of  the Gift-tax Act, 1958 (for short the `Act’)\t for
\nthe opinion of the High Court :-\n<\/p>\n
    “Whether  on  the facts and in the circumstances of\t the
\ncase,  the Tribunal was right in holding that the release by
\nthe  assessee  who  was one of the partners in the  firm  of
\n3-Aces,\t of  his  rights  in the assets of the\tfirm  for  a
\nconsideration  of  Rs.\t3,00,000\/- when the market value  of
\nthe  assets  of the firm in proportion to his share  was  in
\nexcess\tthereof, did not amount to a gift within the meaning
\nof the Gift-tax Act.”\n<\/p>\n
    The\t High  Court by the impugned judgment  answered\t the
\nsaid question in negative and against the assessee.\n<\/p>\n
    Briefly  stated, the facts leading to the filing of this
\nappeal are as follows.\n<\/p>\n
    The\t appellant and his brother Bishanlal Ahuja were\t the
\npartners of a partnership firm constituted on 9.1.1965 under
\nthe name and style of “3-Aces”.\t The firm was engaged in the
\nbusiness   of\ta  restaurant  in   a  building\t  known\t  as
\n“Mohsin-ul-Mulk Kothi” situated at Abid Road, Hyderabad.\n<\/p>\n
    An\tagreement was entered into between the appellant and
\nhis  brother Bishanlal on 15.4.1971.  The terms of the\tsaid
\nagreement are set out below:  –\n<\/p>\n
    “(i)  Sri  Jagatram\t (assessee)  is\t to  retire   before
\nDecember 31,1971.\n<\/p>\n
    (ii) Steps are to be taken to finalise accounts relating
\nto  the\t partnership and determination of the amount due  to
\nSri Jagatram on retirement.\n<\/p>\n
    (iii)Sri  Bishanlal agreed to pay a sum of Rs.  1,50,000
\nto  Sri\t Jagatram  towards  the value of 50%  share  of\t the
\ngoodwill of the firm.\n<\/p>\n
    (iv)  The  above  sum of Rs.  1,50,000  payable  by\t Sri
\nBishanlal  to  Sri Jagatram shall be in addition to the\t sum
\ndue  to\t Sri  Jagatram from the partnership at the  time  of
\nretirement.\n<\/p>\n
    (v)\t If  the total sum including 50% share value of\t the
\ngoodwill,  i.e.,  Rs.  1,50,000\/-, payable to  Sri  Jagatram
\nfalls  below  Rs.   3,00,000, the amount in  excess  of\t the
\nbalance\t actually  due\tto  Sri\t Jagatram  at  the  time  of
\nretirement  shall be treated as the sale value of 50%  share
\nof the goodwill belonging to Sri Jagatram.\n<\/p>\n
    (vi)  Sri  Jagatram shall execute proper  conveyance  in
\nfavour\tof Sri Bishanlal conveying 50% share in the land and
\nbuilding in which the business of 3-Aces is carried on.\n<\/p>\n
    (vii)It  is\t open to Sri Bishanlal to classify  the\t sum
\npayable\t to  Sri Jagatram as between movable  and  immovable
\nproperties  and\t get  necessary documents  executed  by\t Sri
\nJagatram.”\n<\/p>\n
    Pursuant to the said agreement, a Deed of Dissolution of
\nthe  partnership  was  executed on 22.11.1971  w.e.f.\tthat
\ndate.\tThe  relevant  terms  contained\t  in  the  Deed\t  of
\nDissolution are given below:-\n<\/p>\n
    “(i)  All the assets and liabilities of the\t partnership
\nincluding  the land and building are taken by Sri  Bishanlal
\nfrom November 22, 1971.\n<\/p>\n
    (ii)  Sri  Jagatram\t renounced his interest,  share\t and
\ninterest  in  the said assets and liabilities from  November
\n22, 1971.\n<\/p>\n
    (iii)In  full settlement and satisfaction of the  share,
\nright  and  interest  of  Sri Jagatram\tin  the\t partnership
\nincluding  land and buildings, profits and goodwill and\t the
\namounts\t standing  to  the  credit of Sri  Jagatram  in\t the
\npartnership  accounts as on November 21, 1971, Sri  Jagatram
\nhas agreed to receive Rs.  3,00,000.\n<\/p>\n
    (iv)  Out  of the said Rs.\t3,00,000, Rs.  1,00,000\t has
\nalready\t been paid.  The balance of Rs.\t 2,00,000 is payable
\nby  Sri\t Bishanlal  against the sale  consideration  of\t the
\nundivided  50%\tshare  in  the land and\t building  known  as
\n“Mohsin-ul-Mulk Kothi”.\n<\/p>\n
    (v)\t Sri Jagatram should immediately execute a sale deed
\nand  register the same in favour of Sri Bishanlal  conveying
\nhis 50% share in the land and building for Rs.\t2,00,000.”\n<\/p>\n
    It\twas  on 10.3.1972 that the appellant  and  Bishanlal
\nexecuted a document styled as `Release Deed’ pursuant to and
\nconsistent with the aforementioned two documents.\n<\/p>\n
    Originally\tassessment of gift tax was made on 12.2.1972
\non  a total gift of Rs.\t 70,000\/.  After allowing  exemption
\nof  Rs.\t  5,000\/-  it  was   determined\t at  Rs.   65,000\/-.
\nSubsequently,  the Gift Tax Officer took up the\t proceedings
\nunder  Section\t16  of\tthe  Act,  1958\t by  re-opening\t the
\nassessment  already  made.   He\t valued\t the  share  of\t the
\nappellant in the partnership assets at Rs.  12,67,015\/-.  An
\namount of Rs.  3,00,000\/- paid by Bishanlal to the appellant
\nwas  deducted and thus the value of the property alleged  to
\nhave  been gifted by the appellant to his brother  Bishanlal
\nwas arrived at Rs.  9,67,015\/-.\t On appeal by the appellant,
\nthe  Commissioner of Gift-tax (Appeals) confirmed the  order
\nof  the\t Gift-tax  Officer.  However, he reduced  the  total
\nvalue  of the gift by Rs.3,77,000\/-.  The appellant took  up
\nthe  matter  in\t further appeal before\tthe  Tribunal.\t The
\nTribunal  accepted the appeal holding that the\tdistribution
\nof  assets between partners on the dissolution of the  firm,
\neven  though  unequal,\tdoes  not  amount  to  “transfer  of
\nproperty”   within  the\t meaning  of  Section  2(xxiv)\t and
\ntherefore,  did\t not amount to “gift” as defined in  Section
\n2(xii) of the Act.\n<\/p>\n
    At\tthe  instance of the Revenue, the Tribunal  referred
\nthe above stated question under Section 26(1) of the Act for
\nthe  opinion of the High Court.\t The High Court referring to
\nthe  various  decisions\t and for the reasons stated  in\t the
\nimpugned judgment took the view in favour of the Revenue.\n<\/p>\n
    In doing so, the High Court relied on CGT vs.  Chhotalal
\nMohanlal  [1987]166  ITR  124(SC), M.K.\t Kuppuraj  vs.\t CGT
\n[1985]\t153  ITR  481  (Mad) and CGT  vs.   Premji  Trikamji
\nJobanputra  [  1982] 133 ITR 317 (Bom.)\t distinguishing\t the
\nother  cases,  particularly  the  case\tof  CGT\t vs.   Getti
\nChettiar  [  1971]  82\tITR 599(SC) strongly  relied  on  in
\nsupport of the case of the appellant.\n<\/p>\n
    At\tthe  outset, the learned counsel for  the  appellant
\nsubmitted   that  the  appellant  is  not  challenging\t the
\nvaluation  of  property\t of  alleged  gift.   Hence,  it  is
\nunnecessary  for  us to go into that question.\tThe  learned
\ncounsel\t for the appellant seriously contended that the High
\nCourt  manifestly erred in answering the question in  favour
\nof  the Revenue contrary to the ratio and principles  stated
\nin  the case of Getti Chetiar (supra).\tHe further submitted
\nthat the decisions relied on by the High Court in support of
\nits  conclusion\t were not directly on the point and some  of
\nthem arose under the Estate Duty Act.\n<\/p>\n
    Per\t  contra,  the\tlearned\t  senior  counsel  for\t the
\nrespondent  argued  supporting\tthe view taken by  the\tHigh
\nCourt.\n<\/p>\n
    We have carefully considered the submissions made by the
\nlearned counsel for the parties.  In order to appreciate the
\nrespective  contentions\t of the parties and to\tresolve\t the
\ncontroversy   we   consider  it\t  appropriate\tto   extract
\ndefinitions  of\t “Gift”\t and  “Transfer\t of  property”\tfrom
\nSection 2 of the Act:  –\n<\/p>\n
    “2\t(xii)  “gift”  means the transfer by one  person  to
\nanother\t of any existing movable or immovable property\tmade
\nvoluntarily  and  without consideration in money or  money’s
\nworth,\tand  includes  the  transfer or\t conversion  of\t any
\nproperty referred to in section 4, deemed to be a gift under
\nthat section;\n<\/p>\n
    Explanation.   —  A  transfer of any building  or\tpart
\nthereof referred to in clause (iii), clause (iiia) or clause
\n(iiib)\tof  section 27 of the Income-tax Act, by the  person
\nwho  is deemed under the said clause to be the owner thereof
\nmade  voluntarily  and\twithout consideration  in  money  or
\nmoney’s\t worth,\t shall be deemed to be a gift made  by\tsuch
\nperson.”\n<\/p>\n
    “2\t(xxiv) “transfer of property” means any disposition,
\nconveyance,  assignment,  settlement, delivery,\t payment  or
\nother  alienation  of  property and,  without  limiting\t the
\ngenerality of the foregoing, includes —\n<\/p>\n
    (a) the creation of a trust in property;\n<\/p>\n
    (b)\t the  grant  or\t creation of  any  lease,  mortgage,
\ncharge, easement, licence, power, partnership or interest in
\nproperty;\n<\/p>\n
    (c)\t the  exercise\tof a power of  appointment  (whether
\ngeneral,  special  or subject to any restrictions as to\t the
\npersons\t in  whose  favour the appointment may be  made)  of
\nproperty  vested  in  any  person;  not\t the  owner  of\t the
\nproperty,  to  determine  its disposition in favour  of\t any
\nperson other than the donee of the power;  and<\/p>\n
    (d)\t any  transaction  entered into by any\tperson\twith
\nintent\tthereby to diminish directly or indirectly the value
\nof  his\t own  property\tand to increase\t the  value  of\t the
\nproperty of any other person;”\n<\/p>\n
    This Court in Commissioner of Gift-Tax, Madras vs.\tN.S.
\nGetti Chettiar<\/a> [1971] 82 ITR 599 SC ], arising under the Act
\nitself\tconstruing and considering the very same  provisions
\nheld that in a Hindu Joint Family by allotting greater share
\nto other members of coparcenary than that to which they were
\nentitled,  the\tassessee  could not be held to have  made  a
\ngift.\tFacts  of  the case were that the assessee  was\t the
\nKarta  of Hindu Undivided Family consisting of himself,\t his
\nson  and  his six grandsons.  There was a partition  in\t the
\nfamily\tproperty.  The total value of the properties divided
\nwas   Rs.8,51,440\/-  but  the\tassessee,  the\tKarta\ttook
\nproperties  worth only Rs.1,78,343\/- allotting the remaining
\nproperties  to other coparceners.  After considering various
\ndecisions  and provisions of law, this Court arrived at\t the
\nfollowing conclusions:-\n<\/p>\n
    i)\tThat  the partition did not effect any\ttransfer  as
\ngenerally  understood  in law and did not,  therefore,\tfall
\nwithin\tthe definition of gift in Section 2(xii) of the Act.\n<\/p>\n
ii) That the partition in the family could not be considered
\nto  be\ta disposition, conveyance,  assignment,\t settlement,
\ndelivery, payment or other alienation of property within the
\nmeaning\t of those words in Section 2(xxiv) of the Act.\tiii)
\nThat the partition was not a transaction entered into by the
\nassessee  with\tintent\tthereby\t to  diminish  directly\t  or
\nindirectly the value of his own property and to increase the
\nvalue  of  the property of any other person and,  therefore,
\nSection\t 2(xxiv)(d)  did not apply.  (iv)  That,  therefore,
\nthere  was no gift by the assessee of which he was liable to
\npay  gift  tax.\t  On  the  reason that\ta  member  of  Hindu
\nUndivided  Family  has\tno  definite  share  in\t the  family
\nproperty  before  the  division\t and he cannot\tbe  said  to
\ndiminish directly or indirectly the value of his property or
\nto  increase  the  value  of   the  property  of  any  other
\ncoparcener  by agreeing to take a share lesser than what  he
\nwould  have got if he would have gone to a court to  enforce
\nhis claim.\n<\/p>\n
    The\t word ‘transaction’ in clause (d) of Section 2(xxiv)
\ntakes  its  colour  from  the main clause;   it\t must  be  a
\ntransfer  of  property in some way.  The words\tdisposition,
\nconveyance, assignment, settlement, delivery and payment are
\nall  used to indicate some kind of transfer of property.  An
\ninterpretation\tclause\twhich extends the meaning of a\tword
\ndoes not take away its ordinary and popular meaning.\n<\/p>\n
    It\tis settled position in law that a partition of Hindu
\nUndivided  Family cannot be considered as a transfer in\t the
\nstrict\tsense.\tIn Commissioner of Income-tax vs.  Keshavlal
\nLallubhai  Patel<\/a> [(1965) 2 SCR 100 = 55 ITR 637] this  Court
\nstated thus:  –\n<\/p>\n
    “But,  is  a partition of joint Hindu family property  a
\ntransfer in the strict sense?  We are of the opinion that it
\nis not.\t This was so held in Gutta Radhakrishnayya v.  Gutta
\nSarasamma [ILR 1951 Mad.  607].\t Subba Rao J.  (then a judge
\nof   the  Madras  High\t Court),  after\t examining   several
\nauthorities,  came  to\tthe conclusion\tthat  ‘partition  is
\nreally\ta  process  in\tand by which a\tjoint  enjoyment  is
\ntransformed into an enjoyment in severalty.  Each one of the
\nshares had an antecedent title and, therefore, no conveyance
\nis  involved in the process, as a conferment of a new  title
\nis  not necessary.’ The Madras High Court again examined the
\nquestion  in  M.K.  Stremann v.\t Commissioner of  Income-tax
\n[41 ITR 297 (Mad.)], with reference to section 16(3)(a)(iv).
\nIt  observed  that  ‘obviously no question  of\ttransfer  of
\nassets\tcan  arise  when all that happens is  separation  in
\nstatus,\t though\t the result of such severance in  status  is
\nthat  the property hitherto held by the coparcenary is\theld
\nthereafter  by\tthe separated members as  tenants-in-common.
\nSubsequent  partition  between\tthe divided members  of\t the
\nfamily\tdoes not amount either to a transfer of assets\tfrom
\nthat  body  of\tthe  tenants-in-common\t to  each  of\tsuch
\ntenants-in-common’.”\n<\/p>\n
    This  Court\t in Getti Chettiar case\t aforementioned\t has
\nstated thus:  –\n<\/p>\n
    “A reading of this section clearly goes to show that the
\nwords\t “disposition”,\t      “conveyance”,    “assignment”,
\n“settlement”,  “delivery” and “payment” are used as some  of
\nthe  modes  of transfer of property.  The  dictionary  gives
\nvarious\t meanings for those words but those meanings do\t not
\nhelp  us.  We have to understand the meaning of those  words
\nin  the context in which they are used.\t Words in a  section
\nof a statute are not to be interpreted by having those words
\nin  one\t hand and the dictionary in the other.\tIn  spelling
\nout  the  meaning of the words in a section, one  must\ttake
\ninto consideration the setting in which those terms are used
\nand  the  purpose  that they are intended to serve.   If  so
\nunderstood,  it is clear that the word “disposition” in\t the
\ncontext\t means\tgiving\taway  or giving up by  a  person  of
\nsomething  which was his own, “conveyance” means transfer of
\nownership,  “assignment”  means the transfer of\t the  claim,
\nright  or  property to another, “settlement” means  settling
\nthe  property,\tright or claim conveyance or disposition  of
\nproperty for the benefit of another, “delivery” contemplated
\ntherein\t is the delivery of one’s property to another for no
\nconsideration and “payment” implies gift of money by someone
\nto  another.   We do not think that a partition in  a  Hindu
\nUndivided  Family can be considered either as  “disposition”
\nor   “conveyance”  or  “assignment”   or   “settlement”\t  or
\n“delivery”  or “payment” or “alienation” within the  meaning
\nof those words in s.  2 (xxiv).\n<\/p>\n
    This  leaves  us  with cl.\t(d) of S.   2  (xxiv)  which
\nspeaks\tof  a  transaction entered into by any\tperson\twith
\nintent\tthereby to diminish directly or indirectly the value
\nof  his\t own  property\tand to increase\t the  value  of\t the
\nproperty  of  another person.  A member of  Hindu  Undivided
\nFamily\twho, as mentioned earlier, has no definite share  in
\nthe  family  property  before division, cannot\tbe  said  to
\ndiminish directly or indirectly the value of his property or
\nto  increase  the  value  of   the  property  of  any  other
\ncoparcener  by agreeing to take a share lesser than what  he
\nwould have got if he had gone to court to enforce his claim.
\nTill  partition,  his  share  in   the\tfamily\tproperty  is
\nindeterminate.\tHe becomes entitled to a share in the family
\nproperty  only\tafter the partition.  Therefore there is  no
\nquestion  of  his either diminishing directly or  indirectly
\nthe  value of his own property or of increasing the value of
\nthe  property of anyone else.  The “transaction” referred to
\nin  cl.\t (d) of s.  2 (xxiv) takes its colour from the\tmain
\nclause\tviz., it must be a transfer of property in some way.
\nThis  conclusion of ours gets support from sub-clause (a) to\n<\/p>\n
(c)  of clause (xxiv) of s.  2, each of which deals with one
\nor  the\t other mode of transfer.  If Parliament intended  to
\nbring  within the scope of that provision partitions of\t the
\ntype with which we are concerned, nothing was easier than to
\nsay so.\t In interpreting tax laws, courts merely look at the
\nwords  of  the section.\t If a case clearly comes within\t the
\nsection, the subject is taxed and not otherwise.”\n<\/p>\n
    This  Court again in Addanki Narayanappa and Another vs.
\nBhaskara  Krishnappa<\/a>  [AIR  1966 SC 1300],  considering\t the
\nprovisions  of\tSections  14, 15, 29, 32, 37, 38 and  48  of
\nPartnership  Act,  1932\t has explained as to the  nature  of
\nproperty  during  subsistence of partnership and  after\t its
\ndissolution.   It  is  held that “from a  perusal  of  these
\nprovisions it would be abundantly clear that whatever may be
\nthe  character\tof the property which is brought in  by\t the
\npartners,  when\t the partnership is formed or which  may  be
\nacquired in the course of the business of the partnership it
\nbecomes\t the  property\tof the firm and what  a\t partner  is
\nentitled to is his share of profits, if any, accruing to the
\npartnership  from the realization of this property, and upon
\ndissolution  of\t the  partnership to a share  in  the  money
\nrepresenting  the value of the property.  No doubt, since  a
\nfirm  has no legal existence, the partnership property\twill
\nvest in all the partners and in that sense every partner has
\nan  interest in the property of the partnership.  During the
\nsubsistence of the partnership, however, no partner can deal
\nwith  any  portion of the property as his own.\tNor  can  he
\nassign\this  interest in a specific item of the\t partnership
\nproperty to anyone.  His right is to obtain such profits, if
\nany,  as  fall to his share from time to time, and upon\t the
\ndissolution of the firm to a share in the assets of the firm
\nwhich remain after satisfying the liabilities set out in Cl.\n<\/p>\n
(a) and sub-Cls.  (i), (ii) and (iii) of Cl.  (b) of S.48.”\n<\/p>\n
    In\t Malabar  Fisheries  Co.    vs.\t   Commissioner\t  of
\nIncome-tax,  Kerala<\/a>  [1979]  120  ITR\t49  SC]\t this  Court
\nconsidered   few  provisions  of   Income-tax\tAct,   1961.
\nReferring to the case of Addanki Narayanappa and other cases
\nexpressed  the view that a partnership firm under the Indian
\nPartnership  Act  is not a distinct legal entity apart\tfrom
\nthe  partners  constituting it and that in law the  firm  as
\nsuch  has no separate rights of its own.  When one talks  of
\nthe  property  or  assets of the firm all that is  meant  is
\nproperty  or  assets in which all partners have a  joint  or
\ncommon interest.  Hence the contention that upon dissolution
\nof   the  firm\trights\tin   the  partnership\tassets\t are
\nextinguished,  cannot be accepted.  It is further, held that
\nthe  partners  own  jointly or in common the assets  of\t the
\npartnership   and,  therefore,\tthe   consequence   of\t the
\ndistribution,  division\t or  allotment\tof  assets  to\t the
\npartners  which\t flows upon dissolution after  discharge  of
\nliabilities  is\t nothing but a mutual adjustment  of  rights
\nbetween\t the  partners\tand  there is  no  question  of\t any
\nextinguishment\tof  the\t firm’s rights\tin  the\t partnership
\nassets\tamounting to a transfer of assets within the meaning
\nof  Section 2(47) of the Income-tax Act, 1961.\tAlthough the
\ncase arose under the provisions of Income-tax Act, but as to
\nthe nature and character of transaction of mutual adjustment
\nof  rights between the partners upon dissolution of a  firm,
\nit  was clearly held that such a transaction did not  amount
\nto  transfer.\tIf there is a sale or transfer of assets  by
\nthe  assessee to a person, the position would be  different.
\nSince  a  partner  in a firm has no exclusive right  on\t any
\nproperty  of the firm he cannot transfer the property.\t But
\nupon  the  dissolution of a firm allotment or adjustment  of
\nthe  assets  takes  place.  Hence there was  no\t element  of
\ntransfer in such a case.\n<\/p>\n
    Yet,  in another case Commissioner of Income-Tax, Madhya
\nPradesh,  Nagpur  and Bhandara vs.  Dewas  Cine\t Corporation<\/a>
\n[1968]\t68  ITR\t 240  SC], dealing with\t the  provisions  of
\nSection\t 10(2)(vii)  of\t Income-tax Act again  referring  to
\nAddanki\t Narayanappa’s case this Court took the view that  a
\npartner\t might\tin an action for dissolution insist to\tsell
\nthe  assets of partnership to realize his share.  But  where
\nin  satisfaction  of the claim of a partner to his share  in
\nthe  value  of the residue determined on the footing  of  an
\nactual\tor notional sale, the properties so allotted  cannot
\nbe taken to have been sold to him.\n<\/p>\n
    On\tprinciples  and\t in  view of the  clear\t ratio,\t the
\ndecision  of Getti Chettiar (supra) of this Court  supported
\nthe case of the appellant which decision was rightly applied
\nby the Tribunal to the facts of the case.  The High Court in
\nrelation to the said decision has stated thus :-\n<\/p>\n
    “Be\t that  as  it may, it is not for us to\texpress\t any
\nopinion\t on the said criticism.\t By virtue of Article 141 of
\nthe   Constitution,   the  said\t  decision  and\t  even\t the
\nobservations aforesaid are binding upon us.  In our opinion,
\nhowever,  the ratio of the said decision has no\t application
\nto  the\t distribution  of assets as between  partners  whose
\nshares\tinter  se are specific and determined at  any  given
\npoint  of time.\t Moreover, this decision has to be read\t and
\nunderstood  in\tthe light of the subsequent decision of\t the
\nSupreme\t Court in CED vs.  Kantilal Trikamlal [1976] 105 ITR
\n92, which is, no doubt, a case arising under the Estate Duty
\nAct.   Section\t2(15)  of  the\t Estate\t Duty  Act   defines
\n“property” in the following terms.”\n<\/p>\n
    The\t High  Court  having rightly stated  that  the\tsaid
\ndecision  and even the observations made were binding on  it
\nwrongly\t did not apply the ratio of the said decision to the
\nfacts of the case in hand.  Further the High Court committed
\nan   error  in\tstating\t that\tthe  said  decision  had  no
\napplication to the distribution of the assets as between the
\npartners  whose shares inter-se are specific and  determined
\nat any given point of time and that the said decision had to
\nbe  read  and  understood  in the light\t of  the  subsequent
\ndecision  of this Court in Kantilal Trikamlal’s case.  As in
\nthe  case of Hindu Joint Family, the coparceners do not have
\nexclusive rights on any specific property of the family, the
\nproperty  allotted to their shares become specified only  on
\npartition;   the same is the position in the case of partner
\nof  a  firm.   No partner of a firm can claim  exclusive  or
\nspecific  right\t in any specific asset of the property of  a
\nfirm.\tCoparceners  also have definite share in  the  Hindu
\nUndivided  Family.  So also the partners have definite share
\nin  the partnership.  In our considered view, the principles
\nstated\tin  Getti Chettiar’s case equally apply to  case  of
\nallotment  or  adjustment of properties among  the  partners
\nupon  dissolution  of  a firm.\tWe fail\t to  understand\t how
\nKantilal  Trikamlal’s  case made any difference.   The\tsaid
\ncase  did  not\tshow any disagreement  with  the  principles
\nstated\tin Getti Chetiar’s case and no distinction was\tmade
\nto  take  a different view.  On the other  hand,  principles
\nstated\tin Getti Chettiar’s case were affirmed.\t In relation
\nto  Getti  Chettiar’s  case, in Kantilal  Trikamlal,  it  is
\nstated thus:-\n<\/p>\n
    “That  a  case  under the Gift-tax Act,  1958,  and\t the
\nconstruction   of  section  2(xxiv)   fell   for   decision.
\nCertainly,  many of the observations there, read de hors the
\nparticular  statute,  might reinforce the assessee’s  stand.
\nThis court interpreted the expression “transfer of property”
\nin   section   2(xxiv)\t and   held  that   the\t  expression
\n“disposition”  used in that provision should be read in\t the
\ncontext\t and  setting of the given statute.  The  very\tfact
\nthat  “disposition”  is treated as a mode of transfer  takes
\nthe  legal concept along a different street, if one may\t use
\nsuch  a\t phrase, from the one along which that word  in\t the
\nEstate\tDuty  Act is traveling.\t Mr.  Justice Hegde  rightly
\nobserved, if we may say so with respect, that:\n<\/p>\n
    “Words  in\tthe  section  of a statute  are\t not  to  be
\ninterpreted  by\t having\t those\twords in one  hand  and\t the
\ndictionary in the other.  In spelling out the meaning of the
\nwords  in  a section, one must take into  consideration\t the
\nsetting\t in which those terms are used and the purpose\tthat
\nthey are intended to serve.” (pp.605-606).\n<\/p>\n
    The\t word” transaction” in section 2(24) of the Gift-tax
\nAct  takes its colour from the main clause, that is, it must
\nbe  a “transfer” of property in some way.  Since a partition
\nis  not a “transfer” in the ordinary sense of law, the court
\nreached\t the  conclusion that a mere partition with  unequal
\nallotments  not\t being\ta  transfer, cannot  be\t covered  by
\nsection\t 2(xxiv).  A close reading of that provision and the
\njudgment  will\tdissolve  the mist of  misunderstanding\t and
\ndiscloses  the danger of reading observations from that case
\nfor  application  in  the  instant case.   The\tlanguage  of
\nsection 2(15), Explanation 2, is different and wider and the
\nreasoning  of  Getti Chettiar cannot therefore, control\t its
\namplitude.   It is perfectly true that in ordinary Hindu law
\na  partition  involves\tno  conveyance\tand  no\t question  o
\ntransfer  arises  when\tall that happens is a  severance  in
\nstatus\tand the common holding of property by the coparcener
\nis  converted  into  separate title of\teach  coparcener  as
\ntenant-in-common.   Nor\t does subsequent partition by  metes
\nand   bounds   amount  to  a  transfer.\t   The\t controlling
\ndistinction consists in the difference in definition between
\nthe  Gift-tax  Act (section 2(xxiv) and the Estate Duty\t Act
\n(section 2(15).”\n<\/p>\n
    We find that Kantilal Trikamlal’s case supports the view
\ntaken  in  Getti  Chettiar’s case.  Added to  this,  Section
\n2(15)  of  the Estate Duty Act, defining “property” came  up
\nfor  consideration  in\tKantilal Trikamlal’s case.   We\t may
\nstate  here itself that the words and expressions defined in
\none  statute as judicially interpreted do not afford a guide
\nto  construction of the same words or expressions in another
\nstatute\t  unless   both\t the   statutes\t  are\tpara-materia
\nlegislations  or  it  is  specifically so  provided  in\t one
\nstatute\t to give the same meaning to the words as defined in
\nother  statute.\t The aim and object of the two legislations,
\nnamely,\t the  Gift-tax Act and the Estate Duty Act  are\t not
\nsimilar.\n<\/p>\n
    In CIT vs.\tBankey Lal Vaidya [1971] 79 ITR 594 (SC), it
\nis  clearly stated that where in the course of\tdissolution,
\nthe  assets  of\t the firm are divided between  the  partners
\naccording  to  the  respective\t shares,  by  allotting\t the
\nindividual  assets  or\tpaying the  money  value  equivalent
\nthereof,  no  transfer is involved and that it is  merely  a
\ncase of distribution of assets.\n<\/p>\n
    The\t same  view  is taken in Addl.\tCIT  vs.   Mohanbhai
\nPamabhai  [1987]  165  ITR  166 (SC) that  where  a  partner
\nretires\t from  a  firm\tand receives  his  share  of  amount
\ncalculated  on\tthe valuation of the net partnership  assets
\nincluding goodwill of the firm, no transfer is involved.\n<\/p>\n
    We now refer to the cases relied on by the High Court to
\nsupport\t its view.  In CGT vs.\tChhotalal Mohanlal [1974] 97
\nITR  393 (Guj), this Court reversed the decision of  Gujarat
\nHigh  Court and in the light of the facts and  circumstances
\nof  the case, held that there was a gift for the purpose  of
\nthe  Gift-tax  Act.   In  that case, a\tfirm  by  name\tM\/s.
\nChhotalal  Mohanlal came into existence with three  partners
\nnamely, Chhotalal Mohanlal, G.Chhotalal and P.Vedilal with 7
\nannas,\t4 annas and 5 annas shares respectively.  During the
\nassessment  year  1963-64,  under the  new  deed,  P.Vedilal
\nretired.   The share of G.Chhotalal remained unchanged.\t One
\nR.Chhotalal  became a partner with 4 annas share.  The share
\nof  assessee Chhotalal Mohanlal was reduced to 4 annas.\t For
\nthe  remaining\t4  annas share, 2 minor\t sons  of  Chhotalal
\nMohanlal  were admitted to the benefits of the firm with 12%
\nand  13% interest respectively.\t There was also no change in
\nthe  share capital standing in the name of the assessee.  As
\ncan  be seen from the facts stated above, P.Vedilal  retired
\nand the firm was reconstituted;\t two minor sons of Chhotalal
\nMohanlal,  one of the partners were admitted to the benefits
\nof   the  partnership  and   simultaneously  share  of\tsaid
\nChhotalal  Mohanlal  was  reduced from 7 annas\tto  4  annas
\ngiving\t3 annas share to the minor sons.  In this  situation
\nwhen  at  the  time of the reconstitution of the firm,\ta  3
\nannas share out of Chhotalal Mohanlal’s 7 annas share in the
\npartnership firm was given to his minor sons it was taken as
\ntransfer  of  property\tby way of gift and as  such  it\t was
\ntaxable.   Hence  the  case of Chottalal  Mohanlal  did\t not
\nadvance\t the  case of the Revenue on the facts of  the\tcase
\nbefore us.\n<\/p>\n
    The\t case  of  M.K.Kuppuraj was also a  case  where\t the
\nassessee’s  share  was reduced and his minor  children\twere
\nadmitted to the benefits of the partnership with 8% share in
\nthe  profits  and this case was referred to and approved  by
\nthis Court in Chottalal Mohanlal’s case.  The case of Premji
\nTrikamji  is  again  a case where in the constitution  of  a
\nfirm,\tminors\twere  admitted\tto   the  benefits  of\t the
\npartnership  firm.  In all these cases, minors were admitted
\nto  the\t benefits of the partnership and if such partner  or
\nminor  did  not\t bring\tin  capital  of\t his  own  into\t the
\npartnership  firm  corresponding to his share, it  was\theld
\nthat  the  transaction amounted to a gift.  But the  present
\ncase  stands entirely on a different footing.  It is clearly
\nand merely a case of adjustment or distribution of assets of
\nthe  firm  in  regard  to  share of  the  appellant  on\t its
\ndissolution and as such no transfer of property was involved
\nin it.\n<\/p>\n
    Thus,  in  our  view, the High court was  not  right  in
\napplying  the  decisions in (1) Chhotalal Mohanlal (2)\tM.K.
\nKuppuraj,  (3)\tPremji Trikamji to the facts of the case  in
\nhand.\n<\/p>\n
    The\t cases\tof  this Court in (1) Getti Chettiar,  (  2)
\nMalabar\t Fisheries  Co.,  (3) Dewas  Cine  Corporation,\t (4)
\nBankey\tLal Vaidya and (5) Mohanbhai Pamabhai aforementioned
\nfully\tsupport\t  the  appellant  on   facts  and   in\t the
\ncircumstances of the case.\n<\/p>\n
    Having  regard to all aspects and for the reasons stated
\nabove, we conclude that the High Court committed an error in
\nanswering  the\tquestion in negative i.e.  in favour of\t the
\nRevenue\t and  against  the assessee-appellant.\t Hence\tthis
\nappeal\tis  entitled to succeed.  The judgment and order  of
\nthe  High Court reported in [1988] 172 ITR 632 (AP) are\t set
\naside,\tupholding  the order of the Tribunal.  The  question
\naforementioned\tis answered in the affirmative i.e.  against
\nthe  Revenue  and in favour of the assessee-appellant.\t The
\nappeal is ordered accordingly.\tNo costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sri Jagatram Ahuja vs The Commissioner Of Gift Tax on 17 October, 2000 Author: S V Patil Bench: S.P. Bhuracha, S.N. Phukan, Shivaraj V. Patil PETITIONER: SRI JAGATRAM AHUJA Vs. RESPONDENT: THE COMMISSIONER OF GIFT TAX, DATE OF JUDGMENT: 17\/08\/2000 BENCH: S.P. Bhuracha , S.N. Phukan , & Shivaraj V. Patil […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-24502","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSri Jagatram Ahuja vs The Commissioner Of Gift Tax on 17 October, 2000 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sri-jagatram-ahuja-vs-the-commissioner-of-gift-tax-on-17-october-2000\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sri Jagatram Ahuja vs The Commissioner Of Gift Tax on 17 October, 2000 - 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